Did the Constitutional Court uphold or breach the law in the Zuma Matter? Quarter 3 2021

By CLEMENT MARUMOAGAE, Published in The Law/Opinion

This article discusses selected aspects of two Constitutional Court judgments that were delivered against former President Jacob Zuma by the Constitutional Court in 2021. It assesses whether the Constitutional Court was the appropriate court of first instance in the dispute between the Mr Zuma and the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State. It further evaluates whether the CC upheld the rule of law and thus clearly demonstrated that no-one is above the law or, in attempting to protect its authority, it violated the law and Mr Zuma's rights.


An order forcing Zuma to attend the Commission

Early in 2021, the Commission launched an urgent application to the Constitutional Court to force Mr Zuma to respect the summons that the Commission issued against him to testify. Mr Zuma decided not to participate in these proceedings and made an application for the chairperson of the Commission to recuse himself, which was dismissed. Mr Zuma then left the Commission without being excused.

The Chairperson instructed the Secretary of the Commission to lay a criminal charge and to launch an urgent application to the Constitutional Court ( Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma 2021 (5) BCLR 542 (CC) (Zuma One). In applying for urgent direct access, the Commission argued that because of its short lifespan, the Constitutional Court was the most appropriate forum to finalise this dispute, "… because if it were to approach the High Court, the appeal process which may ensue would defeat the objective of compelling the respondent to testify before the Commission". In entertaining this argument, the Constitutional Court did not raise as an issue that the Commission had previously applied for an extension of time where the need arose, and it could do so again to ensure that the entrenched civil procedural rights of litigants against the Commission were not prejudiced. In the months following the Zuma One judgment, this is exactly what the Commission did. The Commission applied for and was granted a further three month extension by the Pretoria High Court.

It is disturbing that the CC granted direct access on the allegation that the Commission was pressured to conclude its work and that it was not left with much time to do so. This is the false basis upon which Mr Zuma was subjected to the jurisdiction of the Constitutional Court, which appears not to have adequately applied its mind to the impact of this application on Mr Zuma's procedural right to appeal or review any decision against him. Without seriously questioning the Commission's ability to request for extension, the Constitutional Court did not push the Commission on the urgency procedures available in the high court and why those, with the assistance of the National Prosecuting Authority, were inadequate to assist it to achieve its intended objectives in this matter.

It is not clear from the Zuma One judgment why rule 6(12)(a) of the Uniform Rules of Court, which provides that in urgent applications, a judge can disregard the 'forms and service' prescribed by the rules, was not competent for the Commission to use. It is common practice that urgent matters in the high court can be brought at any time to circumvent the time periods usually involved. The Commission ought to have approached the high court and, in terms of Rule 6 (12)(b), "… set forth on affidavit explicitly the circumstances which [it] avers render the matter urgent and the reason why [it] claims that [it] could not be afforded substantial redress at the hearing in the normal course" (J v J and Another (5250/17) [2017] ZAECMHC 53 (14 December 2017). It is submitted that on this point alone, the Constitutional Court erred in granting the Commission direct access. By so doing, it prejudiced Mr Zuma's procedural law rights to challenge the adverse decision against him to a superior court.

The second issue that is concerning about the Zuma One majority judgment is how it dealt with the applications for amicus curie made in this case. While it accepted the applications made by the Council for the Advancement of the South African Constitution (CASAC) and the Helen Suzman Foundation (Foundation), it rejected that made by Adv Vuyani Ngalwana SC. The importance of this decision lies on the arguments made by all the amici. For instance, the Court was required to interpret s3(4) of the Commission Act (8 of 1947), which extends the protection enjoyed by witnesses in criminal trials relating to privilege to the hearings of commissions. Section 203 of the Criminal Procedure Act, 1977 provides that "[n]o witness in criminal proceedings shall, except as provided by this Act or any other law, be compelled to answer any question which he would not . . . have been compelled to answer by reason that the answer may expose him to a criminal charge". In other words, section 3(4) of the Commission Act read with s203 seeks to protect witnesses called to provide evidence before commissions of enquiry from being compelled to give self-incriminating evidence. In Zuma One, "CASAC argued that section 3(4) must be construed as excluding the privilege against self-incrimination but retaining all other privileges". While the Court appeared not to be persuaded by this argument, it nonetheless declared that "Mr Zuma does not have a right to remain silent in proceedings before the Commission". It is not clear what Adv Ngalwana's submissions would have been on this issue or how they would have assisted the court to have a better understanding of the relationship between s3(4) of the Commission Act and s203 of the Criminal Procedure Act. In dismissing his application, and without adequately explaining the nature of the arguments made by Adv Ngalwana, the Court merely stated that his application "does not meet the relevant requirements".

It is not disputed that Mr Zuma made it clear that he was not going to participate in the Commission's proceedings while his review application was still pending. Nor is it disputed that Mr Zuma defied the lawful process of the Commission first by leaving the Commission without being excused from doing so, and second, by failing to appear after being lawfully summonsed by the Commission. The Commission was, therefore, entitled to launch court proceedings to force Mr Zuma to obey the summons. The challenge, however, is which court was competent in law to deal with this matter as a court of first instance? It is submitted that there was no basis upon which the Constitutional Court should have granted direct access. The high court was available to address this issue on an urgent basis.

Contempt of court proceedings

Mr Zuma failed to attend and give testimony at the Commission, which led the Commission to launch an urgent application for contempt of court, and to seek an order of direct imprisonment against Mr Zuma.

In Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18 (29 June 2021) (Zuma Two), the Constitutional Court judges were divided nine to two. Khampepe ADCJ, for the majority, approached this case on two bases: first, to protect the authority of the judiciary generally, and the Constitutional Court in particular, with a view to discourage non-compliance with court orders; and secondly, based on proving that no-one, including Mr Zuma, was above the law in South Africa. The Commission argued that Mr Zuma's conduct posed a grave threat to the administration of justice and the rule of law and may influence others to defy the courts. Further, that "Mr Zuma has effectively conducted a politically-motivated smear campaign of this Court, the Commission and the Judiciary". The majority stated that "[n]ever before has this Court's authority and legitimacy been subjected to the kinds of attacks that Mr Zuma has elected to launch against it and its members. Never before has the judicial process been so threatened… it is becoming increasingly evident that the damage being caused by his ongoing assaults on the integrity of the judicial process cannot be cured by an order down the line. It must be stopped now. Indeed, if we do not intervene immediately to send a clear message to the public that this conduct stands to be rebuked in the strongest of terms, there is a real and imminent risk that a mockery will be made of this Court and the judicial process in the eyes of the public. The vigour with which Mr Zuma is peddling his disdain of this Court and the judicial process carries the further risk that he will inspire or incite others to similarly defy this Court, the judicial process and the rule of law".

The majority's quest to "uphold the rule of law" and protect the integrity of the judiciary by "stopping the alleged conduct of Mr Zuma" has been welcomed and praised. It is unfortunate that most of the commentary is not on the reasoning and approach of the majority, but on the judgment, which many believe indicates that we are all equal before the law. The proper and contextual reading of the majority judgment indicates that it did the contrary. If Mr Zuma's name is removed from the judgment and it is read contextually to understand its approach and reasoning, it will immediately become clear that the judgment was a violation of the rule of law for many reasons. I will only deal with two important procedural aspects: should the Constitutional Court have been the court of first instance in this matter, and did the majority fail to understand the methodology of criminal procedure.

Despite the debate in which the Court engaged regarding the contempt of court proceedings, this is a crime in South Africa, irrespective of whether a court order being defied emanated from criminal or civil proceedings. A contempt of court proceeding necessitates the establishment of guilt and leads to a criminal sanction, be it direct imprisonment, a suspended imprisonment sentence or a fine. In dealing with the issue of contempt of court, the majority was misled by Fakie N.O. v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) where it was made clear that contempt of court proceedings, particularly those emanating from civil proceedings, may be conducted in motion proceedings. This led the court to enter an unnecessary debate relating to coercive and punitive orders. Coercive orders, if not respected, would also ultimately lead to punitive actions. What the court lost sight of, is that the proceedings in Fakie emanated from the high court and were appealed to the SCA, with a further option of appeal to the Constitutional Court. Thus, any wrong decision by a judge in a lower court stood a chance of being corrected by a superior court. Second, the majority also lost sight of the fact that being a crime, contempt of court mandated the participation of Mr Zuma, who stood a chance of being sent to prison.

By granting direct access to the Constitutional Court, the majority effectively denied Mr Zuma the right to appeal, particularly because there was a dissenting view. That alone should have been the basis for the Constitutional Court to leave the matter to be first dealt with by lower courts. The majority held that "[i]t goes without saying that neither the public's vested interests, nor the ends of justice, would be served if this matter were to be required to traverse the ordinary, and lengthy, appeals process that would render the litigation protracted". The majority did not explain why the urgency proceedings possible in the lower courts would be inadequate. There are two concerning statements made in the majority judgment which could justifiably lead to an argument that the Court missed the point on the value of appeals generally. First, the majority said that "[w]hilst this judgment indeed cannot be appealed, this Court afforded Mr Zuma multiple opportunities to place relevant material before it". This did not erase Mr Zuma's right to have an adverse court decision against him reconsidered by a higher court. This right was not dependent on the 'generosity' of the Constitutional Court and its willingness to invite him to participate in the matter before it. Second, the majority stated that "Mr Zuma simply does not enjoy an accused person's right of appeal". An appeal has nothing to do with how the Court characterises the person subjected to its order, but rather whether the person believes the order against them to be wrong and that a superior court may come to a different conclusion. The majority assumed that it had the right to protect the rule of law, which it sought to do by denying Mr Zuma the right to have an order against him reconsidered by another court. The majority was of the view that this limitation was justified by the Constitution itself, which "categorically allows the denial of the right of appeal by empowering this Court to entertain matters by way of direct access. So, the Constitution itself has, in its wisdom (or rather that of its framers), seen fit to take away the right of appeal in those instances where direct access is warranted". This is not entirely true, because the Constitution does not encourage the violation of protected rights where there is no justifiable basis to do so. In this instance, there was no reason for the Court to grant direct access on an issue that could have been adequately dealt with by a lower court, particularly because it involved fundamental rights which judges of the court viewed differently: the rights to fair trial, appeal and freedom. Theron J correctly held that "… section 167(6)(a) is a procedural rule which allows a matter to be brought directly to the CC. It does not divest litigants of their constitutional rights. To the extent that the main judgment suggests that the granting of direct access to this Court has the result of divesting litigants of their constitutional right of appeal, it fails to grasp this point".

In the second issue, the majority failed to realise that it was now a criminal court being asked to pass a criminal sanction. It failed to engage some of the most important provisions of the Criminal Procedure Act (51 of 1977) (CPA) with a view to determining whether they were applicable in this matter. First, s43 of the CPA empowers judicial officers to issue warrants of arrest upon written applications, where offences committed must be set out. Section 43(2) of the CPA provides that "[a] warrant of arrest issued under this section shall direct that the person described in the warrant shall be arrested by a peace officer in respect of the offence set out in the warrant and that he be brought before a lower court". The point here is that once the Constitutional Court was satisfied to be the court of first instance, it should have considered whether it was competent to issue a warrant of arrest to ensure Mr Zuma's attendance, notwithstanding the fact that he did not oppose the application. Persons accused of crimes, like Mr Zuma, who was accused of being in contempt, ordinarily do not submit any document for them to appear in court. They are generally forced to appear through arrests, and they then apply for bail to secure their release on warning. The Court had the authority to secure Mr Zuma's attendance, particularly because it was requested to impose sanction that interfered with his right to freedom as provided by s12(1)(a) and (b) of the Constitution. In fact, the majority judgment did not deal with this constitutional provision adequately. It provides that '[e]veryone has the right to freedom and security of the person, which includes the right not to be deprived of freedom arbitrarily or without just cause [and] not to be detained without trial'. Contempt of court proceedings which emanate from civil proceedings have the potential to ensure detention without trial. The majority did not interpret s12(1)(a) of the Constitution in relation to the actual contempt of court proceedings before it, but in relation to the mitigation of sentence that it was likely to impose. In its eyes, the majority promoted Mr Zuma's rights when it invited him to provide an affidavit of no longer than 15 pages to provide mitigation in the event that he was found guilty of the alleged contempt, and to make a submission on the nature and magnitude of sentence that should be imposed (Zuma Two). While it is doubtful that a court can ask a litigant to mitigate before conviction, this was a clear demonstration that the judges of the Constitutional Court appreciated that they were conducting a criminal court in this matter.

In my view, s12(1)(a) and (b) of the Constitution make it quite clear that the current jurisprudence that a person 'charged' with contempt emanating from both criminal and civil matters can be convicted on motion proceedings is utterly wrong. This provision requires a trial, because a person's right to liberty is threatened. On this point, it is submitted that the Constitutional Court failed to understand the methodology of criminal procedure, which they ought, at the very least, to have considered. Further, the view that a person facing contempt proceedings is not an accused person appears to be unsustainable. When there is a claim that a court order has not been obeyed, an accusation is made that the court was defied. It is precisely this point that makes the Constitutional Court an inappropriate forum of first instance to deal with contempt matters, even of its own judgments. This case should have been taken to the magistrates' court (which may entertain matters on an urgent basis) so that it could be ventilated. Alternatively, if the Commission felt that time would have been lost, the high court should have been approached on an urgent basis.

Theron J, writing for the minority, correctly observed that where a person is facing a punitive committal order, s35(3) of the Constitution in its entirety is unavoidable. In this instance, Mr Zuma would be accorded the status of an "accused person" for the purposes of s35(3) ( Zuma Two). In S v Dzukuda; S v Tshilo 2000 (4) SA 1078 (CC), the Constitutional Court held that "an accused's right to a fair trial under section 35(3) of the Constitution is a comprehensive right and embraces a concept of substantive fairness …".

The question is, was Mr Zuma treated fairly by the CC or did the desire to prove that we are all equal before the law, as well as the judges' frustration with Mr Zuma's conduct, lead the majority to be blinded? Did they fail to properly consider the impact of its approach on Mr Zuma's rights?

Theron J correctly reasoned that:

'By depriving contemnors of their liberty without a criminal trial, summary contempt proceedings, even when brought on notice of motion, limit the fundamental right to freedom of the person protected by section 12 and the right to a fair trial protected by section 35(3) of the Constitution. Where this procedure is exercised for purely punitive purposes, the limitation of fundamental rights cannot be justified. Rights should not be limited without a criminal trial in the interests of "nakedly punitive retribution'.

I am of the view that the Constitutional Court should have sought answers from the Criminal Procedure Act or, at the very least, have explained why this Act was inadequate to dispose of the matter, notwithstanding its criminal nature. For instance, given the fact that the Constitutional Court decided to be the court of first instance in this matter, the phrase 'lower court' may be interpreted to include the CC. Because the Court was turned into a criminal court and requested to pass a criminal sanction, perhaps s179(1)(a) of the CPA may have assisted. This section provides that "[t]he prosecutor or an accused may compel the attendance of any person to give evidence or to produce any book, paper or document in criminal proceedings by taking out of the office prescribed by the rules of court the process of court for that purpose".

Because the Commission went directly to the Constitutional Court, perhaps it should have relied on this provision to secure Mr Zuma's attendance as a witness in these proceedings, to provide evidence regarding the contempt of court 'charge' against him, and ensure that his rights were adequately protected.

Concluding Remarks

The desire to protect the image of the Constitutional Court and to prove that no-one is above the law led the majority to conduct themselves in a potentially unconstitutional manner. I am convinced that Theron J was absolutely right to conclude that '[t]he main judgment, by its own admission, has pushed the bounds of our law of contempt in order to meet these exceptional circumstances' (Zuma Two). Because there was a difference of opinion in the Constitutional Court, sitting as a court of first and last instance, the majority ought not to have granted direct access, or, at the very least, have been more cautious and, if it thought that direct access was competent under the circumstances, have granted an order as suggested by the minority judgment. I agree with Theron J that the majority created bad law, which is not only bad, but also unconstitutional (Zuma Two). In my view, the majority judgment should not be celebrated, because it violated the law and Mr Zuma's constitutional rights to appeal, fair trial and freedom. These are important constitutional rights which the Constitutional Court has now demonstrated can be stripped from those appearing before it without engaging s36 of the Constitution, which provides the justification for the limitation of rights.

How one feels about Mr Zuma is beside the point; the majority's approach should leave any person who respects the rule of law concerned about how the judges of the Constitutional Court exercise their powers.

Marumoagae is an Associate Professor at the University of the Witwatersrand and a practising Attorney at Marumoagae Attorneys.